EXHIBIT 10.30
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of June 14, 1999, is
entered into by Atrieva Corporation (the "Employer") a Delaware corporation, and
Xxxxxxx Xxxxxxxx ("Employee").
1. BACKGROUND
In consideration of the promises herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, Employer and
Employee hereby agree as follows:
2. EMPLOYMENT
Employee shall be the Vice President of Business Development of the Atrieva
Corporation as of date of approval by the Employer's Board of Directors.
Employee shall at all times report to, and his business activities shall be
subject to the direction and control of, the Employer's President and CEO.
3. TERM
This Agreement shall become effective as of the date of this Agreement and
shall terminate in accordance with the provisions of paragraph 5 below.
4. COMPENSATION
4.1 Salary
During the term of this Agreement, Employer agrees to pay or cause to be paid to
Employee, and Employee agrees to accept in exchange for the services rendered
hereunder by him, a salary of $12,500 before all legally required payroll
deductions. Such salary shall be paid in substantially equal monthly
installments, on monthly paydays that are consistent with the payroll schedule
used for other employees of Employer.
4.2 Performance Bonus
In addition to the annual salary described in subparagraph 4.1 above,
Employee shall be entitled to receive a quarterly bonus of up to $10,000. The
Bonus will be paid subject to achievement by Employee of objectives determined
and agreed upon between Employee and the Employer's President and CEO. Said
objectives will be defined in writing no later than 60 days after Employee's
signing of this agreement. All legally required payroll deductions shall be
taken from the Employee's Performance Bonus to arrive at his net payable
Performance Bonus.
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
4.3 Incentive Stock Options
In addition, the Employee shall receive Incentive Stock Options in the
amount of 350,000 shares. These shares shall vest according to the 1997 Stock
Option Plan vesting schedule of 25% on the first anniversary date of the date of
grant, and 6.25% per quarter thereafter.
Should there occur any "Involuntary Termination" (as defined below) within
twelve (12) months following a Change in Control of the Company, then on the
effective date of the Involuntary Termination, any stock option(s) held by
Employee at the time of the Involuntary Termination shall, in addition to
amounts already vested and/or exercisable, immediately vest and/or become
exercisable according to the following schedule:
Valuation of Company in Additional vesting
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Change in Control Transaction
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Less than S75 Million None
$75 Million or Greater, Initial one year cliff vesting
but less than $250 Million waived, if then applicable, and
replaced with quarterly vesting
from the option commencement date,
plus 4 quarters additional vesting
Greater than $250 Million As above, plus 2 additional
quarters vesting
(a) The term "Involuntary Termination" shall mean the termination of
Employees employment with the Company:
(i) involuntarily upon his dismissal, other than for Cause (as
defined below); or
(ii) voluntarily or involuntarily following (A) a change in Employee's
position with the Company which materially reduces Employees
level of responsibility, or (B) a change in Employees place of
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employment to a county outside, of Alameda, San Francisco, or Contra
Costa counties, provided and only if such change(s) or reduction(s)
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are effected without Employees written concurrence.
4.4 Employee Benefits
During the term of this Agreement, Employee will be entitled to participate
in such fringe benefit programs as may be provided from time to time by Employer
to its employees generally. Employee's participation in all such fringe benefit
programs shall be subject to and in accordance with all applicable eligibility
and other requirements of those programs, including, without limitation, the
terms of any applicable employee benefits plans.
5. TERMINATION
Employment of Employee pursuant to this Agreement may be terminated as follows:
5.1. By Employer
With or without Cause or for no cause (as defined in subparagraph 5.4 below),
Employer may terminate the employment of Employee at any time during the term of
this Agreement upon giving Notice of Termination (as defined in subparagraph 5.5
below).
5.2. By Employee
Employee may terminate his employment at any time, for any reason, upon giving
Notice of Termination.
5.3. Automatic Termination
This Agreement and Employee's employment hereunder shall terminate
automatically upon the death or Total Disability of Employee. The term "Total
Disability" as used herein shall mean Employee's inability to perform the
essential functions of Employer's Vice President of Business Development for a
period or periods aggregating 60 calendar days in any 12-month period as a
result of physical or mental illness, loss of legal capacity or any other cause
beyond Employee's control, unless Employee is granted a leave of absence by
Employer's President and CEO. Employee and Employer hereby acknowledge that
Employee's ability to perform the essential functions of Employer's Vice
President of Business Development is of the essence of this Agreement.
Termination hereunder shall be deemed to be effective (a) at the end of the
calendar month in which Employee's death occurs or (b) immediately upon a
determination by Employer's President and CEO of Employee's Total Disability.
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5.4. Cause
Wherever reference is made in this Agreement to termination being with or
without Cause "Cause" is limited to the occurrence of one or more of the
following events:
(a) Failure or refusal to use reasonable efforts to carry out die lawful
directions of the Employer, which directions are reasonably consistent with
the duties herein set forth to be performed by Employee;
(b) Violation by Employee of a state or federal criminal law involving the
commission of any crime against Employer or any felony;
(c) Intoxication at work which impairs Employee's performance of duties;
deception, fraud, misrepresentation or dishonesty by Employee; any incident
materially compromising Employee's reputation or ability to represent
Employer with the public; or material breach of Employee's duty of loyalty
to Employer.
5.5. Notice
The term "Notice of Termination" shall mean at least five days' written notice
of termination of Employee's employment, during which period Employee's
employment and performance of services will continue; provided, however, that
Employer may, upon notice to Employee and without reducing Employee's
compensation during such period, excuse Employee from any or all of his duties
during such period. The effective date of the termination of Employee's
employment hereunder shall be the date on which such five-day period expires.
6. REPRESENTATIONS AND WARRANTIES
In order to induce Employer to enter into this Agreement, Employee represents
and warrants to Employer that neither the execution nor the performance of this
Agreement by Employee will violate or conflict in any way with any other
agreement by which Employee may be bound, or with any other duties imposed upon
Employee by corporate or other statutory or common law.
7. NOTICE AND CURE OF BREACH
Whenever a breach of this Agreement by either party is relied upon as
justification for any action taken by the other party pursuant to any provision
of this Agreement, before such action is taken, the party asserting the breach
of this Agreement shall give the other party at least ten days' prior written
notice of the existence and the nature of such breach before taking further
action hereunder and shall give the party purportedly in breach of this
Agreement the opportunity to correct such breach during the ten-day period.
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8. FORM OF NOTICE
All notices given hereunder shall be given in writing, shall specifically refer
to this Agreement and shall be personally delivered or sent by telecopy or other
electronic facsimile transmission or by registered or certified mail, return
receipt requested, at the address set forth below or at such other address as
may hereafter be designated by notice given in compliance with the terms hereof:
If to Employee: Xxxxxxx Xxxxxxxx
[***]
If to Employer Atrieva Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax; (000) 000-0000
Copy to: Xxxxx X. XxXxxx
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
If notice is mailed such notice shall be effective upon mailing, or if notice is
personally delivered or sent by telecopy or other electronic facsimile
transmission it shall be effective upon receipt.
9. ASSIGNMENT
This Agreement is personal to Employee and shall not be assignable by Employee.
Employer may assign its rights hereunder to (a) any corporation resulting from
any merger, consolidation or other reorganization to which Employer is a party
or (b) any corporation, partnership, association or other person to which
Employer may transfer all or substantially all of the assets and business of
Employer existing at such time. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
10. WAIVERS
No delay or failure by any party hereto in exercising, protecting or enforcing
any of its rights, titles, interests or remedies hereunder, and no course of
dealing or performance with respect thereto, shall constitute a waiver thereof.
The express waiver by a party hereto of any right, title, interest or remedy in
a particular instance or circumstance
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shall not constitute a waiver thereof in any other instance or circumstance. All
rights and remedies shall be cumulative and not exclusive of any other rights or
remedies.
11. ARBITRATION
With the exception of any claims for which the applicable law precludes a pre-
dispute agreement to binding arbitration, any controversies or claims arising
out of or relating to this Agreement, or to the employment relationship between
Employee and Employer, shall be settled by final and binding arbitration
administered by the American Arbitration Association (the "AAA") under its then-
current National Rules for the Resolution of Employment Disputes. A single
arbitrator shall be selected and the arbitration shall be held in the city in
which Employee principally caries out his duties. The parties shall equally
share the fees and expenses of the arbitrator and the administrative expenses of
the AAA. Judgment upon the arbitrator's award may be entered in any court having
jurisdiction.
12. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of
this Agreement, nor consent to any departure therefrom by either party hereto,
shall in any event be effective unless the same shall be in writing,
specifically identifying this Agreement and the provision intended to be
amended, modified, waived, terminated or discharged and signed by Employer and
Employee, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Employer and Employee.
13. APPLICABLE LAW
This Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by, and interpreted, construed and
enforced in accordance with, the laws of the state of California, without regard
to any rules governing conflicts of laws.
14. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions hereof shall remain in full force and
effect in such jurisdiction and shall be liberally construed in order to carry
out the intent of the parties hereto as nearly as may be possible, (b) such
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invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision hereof and (c) any court or
arbitrator having jurisdiction thereover shall have the power to reform such
provision to the extent necessary for such provision to be enforceable under
applicable law.
15. HEADINGS
All headings used herein are for convenience only and shall not in any way
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
16. ENTIRE AGREEMENT
This Agreement between the parties to this Agreement and dated as of the date of
this Agreement constitute the entire agreement between Employer and Employee
with respect to the subject matter hereof and all prior or contemporaneous oral
or written communications, understandings or agreements between Employer and
Employee with respect to such subject matter are hereby superseded and nullified
in their entireties.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement
on the dates set forth below.
FOR EMPLOYER: FOR EMPLOYEE:
By: [SIGNATURE ILLEGIBLE]^^ /s/ Xxxxxxx Xxxxxxxx
-------------------------- -----------------------------
of Atrieva Corporation Xxxxxxx Xxxxxxxx
Its CEO
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Date: 6/14/99 Date: 6/14/99
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